Citation Nr: 1825455 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 14-34 608A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for low back strain with degenerative disc disease of the lumbar spine. REPRESENTATION Veteran represented by: Brett Buchanan, Agent ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from December 1965 to May 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The record reflects that the Veteran was previously represented by the Texas Veterans Commission. In September 2014, the Veteran executed a VA Form 21-22a (Appointment of Individual as Claimant's Representative) naming VA Accredited Claims Agent, Brett Buchanan, as his representative. The Board recognizes the change in representation. See 38 C.F.R. § 20.605 (2017). The Board recognizes that in July 2017, the Veteran perfected an appeal for entitlement to a total disability rating based on individual unemployability (TDIU). Notably, however, the RO has not yet certified this issue to the Board, signifying that the originating agency is not fully completed with development. As adjudicative actions by the Board at this time may be premature, the Board will not assume jurisdiction over this issues at this time. FINDING OF FACT The evidence of record is in equipoise as to whether the Veteran's low back strain with degenerative disc disease of the lumbar spine is related to an injury that occurred during active duty service. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the Veteran's low back strain with degenerative disc disease of the lumbar spine was incurred in service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection for a low back strain with degenerative disc disease of the lumbar spine incurred after falling from a rigging while aboard a Naval ship during his active service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking service connection for low back strain with degenerative disc disease of the lumbar spine. The service treatment records show that the Veteran suffered a fall while aboard a ship in June 1967. The Veteran reported that he landed partially on his left shoulder and the left side of his thorax. The Veteran was hospitalized thereafter, and an examination of the back revealed that in addition to pain in the lower rib cage, there was also pain over the paravertebral muscles along the thoracic spine from the level of about T-2 to T-12. There was full range of motion of the spine with pain. X-rays on admission and on discharge were normal. There were also no further complaints or treatment for back pain noted at the time of discharge. The diagnosis of degenerative disc disease (DDD) of the lower lumbar spine at the L2-3 level was made in 1995. The record reflects conflicting evidence addressing the question of whether the Veteran's low back strain with degenerative disc disease of the lumbar spine is etiologically related to service. At an August 2012 VA examination, the VA examiner opined that it was less likely than not that the Veteran's back disability was incurred in or caused by the in-service fall. By way of rationale, the examiner noted that following the fall, the Veteran was diagnosed with a strain, treated with bed rest, and was able to return to active duty. The examiner also noted that the Veteran was diagnosed with DDD of the lumbar spine in 1995, thirty years from the time of service. The examiner opined that the more likely etiology was aging and activity in the past 30 years from the time of discharge from service to the time of diagnosis. The Board also acknowledges that the examiner noted that he did not review the claims file. The Veteran submitted a July 2013 private opinion by Dr. D.C. in which the physician opined that the Veteran's back disability was the result of the Veteran's service. The examiner specifically noted that the Veteran demonstrates post-traumatic arthritis of the lumbar spine and that it was strongly believed that his fall while in the Navy traumatized his spine and accelerated his profound spinal disease. The physician further noted that the Navy's original evaluation claiming a lack of fracture could not be a means to deny the accelerating factor of the traumatic event, and that the use of plain x-rays was not in line with today's standard of care and is inferior to the technological capabilities of CT and MRI (which were unavailable in 1967). The physician further noted that the Veteran suffered persistent pain at the time of discharge, throughout his Naval tour of duty, and beyond. The physician also included references to an MRI performed of the spine in August 2008 which showed severe degenerative disc disease at L2-3 with moderate left foraminal disc herniation, causing moderate to severe left neural foraminal narrowing. A VA addendum opinion, dated in September 2014, provided that the Veteran's low back strain with degenerative disc disease of the lumbar spine was less likely than not related to his injury in service. In support of this opinion, the examiner noted that following the 1967 injury, the Veteran was diagnosed with "multiple contusions, low back strain" and that there was no medical record evidence to indicate that this was not an acute injury and that no in-service diagnosis of DJD/DDD of the lumbar spine was found or listed on the separation examination. The examiner also noted that contusions with strain is not the same as DJD/DDD; a contusion is a bruise as a result of trauma and a strain involves muscle usually as a result of overuse, whereas DJD/DDD involves bone, cartilage, and discs usually as a result of the natural aging process. The examiner further stated that the length of time between injury and diagnosis favors the natural aging process rather than trauma as the etiology of the Veteran's condition. Also, the examiner noted that DDD as the result of trauma would occur immediately after the trauma while DDD as a result of the natural aging process would gradually occur over time. Further, the examiner noted that the Veteran's direct trauma was to the shoulder and left side of the thorax and that such would not produce lumbar pathology. The Board also acknowledges receipt of correspondence dated in February 2017. In the letter, the Veteran, through his representative, contends that the Veteran has experienced back pain since discharge from active duty and that he was treated intermittently by chiropractors in the 1970s to 1990s. It was also noted that such records are unavailable as all providers are either no longer in business or are not alive. It was further noted that private physician, Dr. D.C., reviewed the Veteran's service treatment records, to include his hospital discharge summary, and was also familiar with his medical history. Additionally, the Veteran, through his representative, stated that the private physician's opinion was highly probative because it was noted that the only back trauma in the Veteran's medical history was his in-service fall; the plain x-ray imaging technology in 1967 could not discount the accelerated arthritis theory; the Veteran was in pain at discharge; and the Veteran had pain throughout the nexus period. Lastly, the representative provided a medical article about post-traumatic arthritis. The article supported the argument made by Dr. D.C. that trauma can put into motion arthritis that can develop and accelerate years or decades following an initial injury and called into question the opinion established in the September 2014 addendum that DDD as a result of trauma would occur immediately and that DDD as a result of natural aging would occur gradually over time. Taking into account (1) the traumatic nature of the in-service injury articulated by the Veteran and supported by the service treatment records; (2) the positive and negative medical opinion evidence of record, to include the Veteran's private physician's July 2013 indication that the Veteran's low back strain with degenerative disc disease of the lumbar spine was specifically due to the in-service fall while aboard a ship; (3) the Veteran's competent and credible lay statements attesting to not suffering any intervening injury to his back following service; (4) the treatise evidence of record; as well as (5) the Veteran's reports as to the progression of his back pain since service, the Board finds that the evidence both for and against the Veteran's claim is at the very least in relative equipoise. When the evidence for and against the claim is in equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). Accordingly, the benefit sought on appeal is granted. ORDER Service connection for low back strain with degenerative disc disease of the lumbar spine is granted. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs